The Case for a Right of Marriage Recognition: Why Fourteenth Amendment Due Process Should Protect Same-Sex Couples Who Change States

Imagine a world where your marital status changed when you moved to a new state. Imagine being denied insurance, medical decision-making authority, or even parental rights by bureaucrats who dismissed your marriage license as if it were some worthless foreign currency. Imagine a world where, with no due process, a state could effectively divorce you against your will.

Absurd? Yes. Unimaginable? For most people it is, but not for gays and lesbians.

Same-sex marriage is now legal in California and Massachusetts. But when married same-sex couples from these states pull up stakes and move someplace else, their new state gets to decide whether their marriage remains valid. More than 40 states purport to void such marriages.

In this column, I will explain why our current marriage recognition doctrine does not deal sensibly with the new challenge of same-sex matrimony. I then contend that courts should recognize a right of marriage recognition, grounded in the Fourteenth Amendment’s due process clause, which would protect same-sex couples from this kind of harmful and unwarranted discrimination.

The Place-of-Celebration Rule Is Not Only Good Policy, It’s Also Part of Due Process

To be sure, choice of law doctrine has long recognized that marriages should be kept intact whenever possible. That is why every state subscribes in some form to the place-of-celebration rule, which holds that when the validity of a marriage is in question, a court should look to the law of the state where it was performed. If the marriage is good under that state’s law, it should be good everywhere.

The policies behind the place-of-celebration rule are unassailable. The rule promotes stability in legal relationships – a value that is especially important where property and children may be involved. It prevents the casual evasion of legal responsibilities. It allows unhindered travel. And it vindicates the unremarkable idea that when you get married, you should be able to make plans and decisions with the confidence that your marriage will not be taken away.

It’s important to note that the place-of-celebration rule typically applies only when two people marry where they legally reside. Thus, my argument in this column is not about the same-sex couple from Atlanta who fly to L.A. for the weekend, get married, then return home and expect Georgia to recognize their new status. The law has always frowned on so-called “evasive marriages,” which pose a separate issue. My concern, rather, is with California and Massachusetts couples who marry in good faith, then move – as many inevitably will for job, education, or family reasons – somewhere else. (Gary Gates, a demographer at UCLA law school, projects that each year, this group could eventually include more than 1,000 same-sex couples who had married in California. Surely the problem is already affecting many of the more than 10,000 gay couples who have married in Massachusetts since 2004.)

Here is the problem with the place-of-celebration rule: it is merely a common law principle that a state may override by statute or state constitutional amendment. And so if a state wants to carve out an exception for same-sex couples, choice-of-law doctrine simply accepts that the state has the power to do so.

Why It’s Wrong for States to Exclude Same-Sex Couples From Place-of-Celebration Rules

Same-sex marriage is now a reality. And so our legal doctrines must adapt to recognize another reality: Allowing states to exclude gays and lesbians from the place-of-celebration rule is irrational, unprincipled, and dangerous.

It is irrational because it defies the sensible, time-tested reasons why the law has long been biased in favor of keeping extant, good-faith marriages intact.

It is unprincipled because laws refusing to recognize same-sex marriages have no serious instrumental rationale; they are based only on a desire to privilege heterosexuality and on vague appeals to “tradition.”

It is dangerous because it makes a mockery of both marriage and divorce. Under current law, a same-sex spouse could seek to escape the legal obligations he undertook in marriage simply by moving to a state that would be all too willing to declare his marriage null and void.

While it is one thing for a state to decline to createa same-sex marriage, it is something quite different for a state to insist on its power to break upan existing legal relationship. Even if same-sex couples in most places have no right to get married, by what logic does it inevitably follow that they should have no right to remain married?

The response from most choice-of-law scholars is to shrug and say, essentially, “That’s the way it’s always been.” Since choice of law is a set of rules for resolving conflicts between sovereigns, it is toothless when it comes to policies, such as those recognizing the value of keeping marriages intact, that transcend the parochial interests of each state. Thus, a state may exclude certain marriages from the place-of-celebration rule no matter how objectively unwise or cruel that idea might be.

All this is so even though there is no precedent for the current treatment of same-sex marriages. Comparisons to other “taboo” unions, such as underage or cousin marriages, are unhelpful because the numbers are far smaller – and because in modern practice, most states in fact have honored such marriages if they were legally procured elsewhere.

Even with interracial marriages prior to Loving v. Virginia, as Andrew Koppelman documents in his book Same Sex, Different States, Southern states confronted with migratory couples “did not utterly disregard the interests of the parties to the forbidden marriages ... but weighed these against the countervailing interests of the forum.” Perhaps most surprisingly, Koppelman finds that even polygamous marriages (from foreign or Native American jurisdictions) have, with few exceptions, been recognized.

I believe scholars, legislators, and judges accept the status quo for same-sex marriages because of a lingering, perhaps subconscious, belief that they are not quite “real” marriages. From such a belief, another belief follows: that the people who enter into such marriages have no legitimate expectation they will be treated with the deference the law accords to virtually all other marriages.

But our law should not tolerate different classes of marriages, some more favored than others. In order to truly protect marriage, we must look to principles provided by the federal Constitution.

A Constitutional Right to Recognition of a Marriage that Was Valid Where Celebrated

I do not intend to argue that the Constitution gives same-sex couples a “right to marry.” Instead, my argument is that if a same-sex couple already lives in a state that’s willing to license their marriage, then they simply have a right to remain married if they subsequently move someplace else. In terms of constitutional doctrine, the Fourteenth Amendment’s due process clause gives the couple a liberty interest in the ongoing existence of their marriage.

Such a right would be narrow and modest. In substance, it would provide nothing more than the place-of-celebration rule already does. But grounding the rule in the Constitution would prevent states from carving out ill-founded and discriminatory exceptions. In a highly mobile society where most marriages are universally recognized, a state should bear the burden – that is, it should be required to articulate some “compelling interest” – if it wants to carve out an exception to this rule.

An enforceable, due-process-based place-of-celebration rule meets the test for a fundamental right the Supreme Court’s set forth in Washington v. Glucksberg: it is “deeply rooted in this Nation’s history and tradition” – so deeply rooted, in fact, that every state observes it, and the vast majority of Americans have the luxury of taking it for granted.

Readers may object that same-sex marriage is not deeply rooted in our history, but that rejoinder misses the point. It might be relevant if I were proposing a constitutional right to obtain a same-sex marriage, not a right to have such a marriage recognized if valid where performed. But sexual orientation is wholly irrelevant to the neutral principles behind the place-of-celebration rule. For these purposes – ensuring stability in legal relationships, preventing the casual evasion of legal responsibilities, and facilitating free travel – protecting a same-sex marriage is indistinguishable from protecting any other.

Supreme Court Precedent on Family and Privacy Strongly Supports a Marriage Recognition Right

A right of marriage recognition also flows naturally from the Supreme Court’s cases protecting privacy in family life.

Although the Supreme Court first recognized a “right to marry” in 1967 in Loving v. Virginia, cases dating back to the 1920s have recognized what the Court has called a “private realm of family life which the state cannot enter.” Two years before Loving found a “right to marry,” the Court in Griswold v. Connecticut rejected a state’s attempt to interfere in an existing marital relationship by prohibiting access to contraceptives. The same family privacy principles led the Court in 1977, in Moore v. City of East Cleveland, to strike down a city ordinance that prohibited certain blood relatives from living together.

While our federal system allows states broad latitude to regulate domestic relations, states may not tamper lightly with the nuclear family. For example, there is no right to adopt a child (or, for the matter, to have the state’s assistance in conceiving one). However, once a legal parent-child relationship has been formed, the Court has recognized a “fundamental liberty interest” and set a high bar for a state to terminate the relationship. As the Court said in Santosky v. Kramer, “parents retain a vital interest in preventing the irretrievable destruction of their family life.”

If that is so for parents, why should it be less so for spouses? If states may not arbitrarily void one type of legal family relationship, it is hard to see why they should be allowed to arbitrarily void another.

A State Interest In Voiding Same-Sex Marriages Should Not Be Deemed Compelling

Could a state overcome the right I describe by demonstrating some compelling interest in voiding same-sex marriages? I think it is unlikely.

Under the Supreme Court’s decisions in Romer v. Evans and Lawrence v. Texas, moral disapproval of homosexuals and their relationships, without more, is insufficient to justify discriminatory treatment. And because same-sex marriages cause no objective harm, arguments about “protecting traditional marriage” are more rhetoric than substance. As Justice Scalia acknowledged in his Lawrence dissent, “ ‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.”

Although Lawrence, which struck down sodomy laws, did not give gay persons a right to marry, it undeniably did recognize that the Constitution requires some level of privacy and respect for same-sex relationships. The reason sodomy laws are unconstitutional, the Court said, is because they “seek to control” homosexual relationships and to “define [their] meaning.” This understanding casts further doubt that a state could establish some compelling interest in disadvantaging such relationships.

Neither Polygamous, Incestuous, Nor Underage Marriages Will Follow

Is the right of marriage recognition I propose a slippery slope toward giving constitutional status to things like polygamy, child marriage, and incest? Not at all. Unlike same-sex relationships in Lawrence, no court has found such relationships to entail any liberty interest whatsoever.

Moreover, as a practical matter, recall that under the place-of-celebration rule, you need a valid marriage to begin with. No state licenses polygamy, and no state is about to start. To the extent states still disagree about the minimum age or degree of consanguinity for marriage, most people regard those differences as trivial, and they are rarely used to invalidate marriages today.

Such red herrings should not distract us from the looming human tragedies that the status quo of our marriage doctrines will produce. Constitutional rights are not to be declared lightly. But when potentially thousands of couples face having their marriages destroyed for no good reason, it is time to recognize that law has failed to keep pace with social change.

Steve Sanders is an attorney in the Supreme Court and appellate litigation practice group of Mayer Brown LLP, based in Chicago. He can be reached via his personal web site, www.stevesanders.net.